Florida’s New “Proportionality” Standard for Civil Discovery: It’s a Game Changer

For years, many attorneys and judges have queried when the Florida Supreme Court would adopt the civil discovery “proportionality” standard that the federal courts adopted in 2015. Some attorneys and judges favored the Florida courts adopting the federal proportionality standard; others were against it. Effective as of January 1, 2025, the Florida Supreme Court ended the debate when it added the proportionality standard to Florida Rule of Civil Procedure 1.280.

On May 23, 2024, the Florida Supreme Court initially adopted the federal proportionality standard, incorporating it into Florida Rule of Civil Procedure 1.280(c)(1) but allowing for public comments before the amendment took effect on January 1, 2025.[1] Based on the public comments that followed, the Court then made further amendments to Rule 1.280 on December 5, 2024.[2]

According to the Court, the central purpose of its December 5, 2024 amendments was to make the “proportionality and discovery changes more effective” and “to resolve potential inconsistencies.”[3] The final version of amended Rule 1.280(c)(1), incorporating the proportionality standard, became effective on January 1, 2025.

Under the new Rule 1.280(c)(1), discovery may be obtained in a civil case if it meets the following standard:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.[4]

Before this amendment, the historic and more liberal standard for obtaining discovery in Florida was a matter was discoverable if the discovery was “reasonably calculated to the lead to the discovery of admissible evidence.” With the added requirement of proportionality, however, discovery now must meet three criteria: it must be relevant to a party’s claim or defense, not be privileged, and be proportional to the needs of the case. Further, what is proportional to the needs the case requires a weighing of six factors, including:  (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.

In adopting this balancing test that considers the above six factors for proportionality, recognizing there is no precedent under Florida law on how to apply the proportionality standard, the Florida Supreme Court added the following comment to Rule 1.280(c)(1) in its December 5, 2024 amendments: “The scope of discovery in subdivision (c)(1) is amended to adopt almost all the text of Federal Rule of Civil Procedure 26(b)(1) and is to be construed and applied in accordance with the federal proportionality standard.”[5] The Court further stated this comment “should be sufficient to lead practitioners and judges to look to federal history and precedents when applying proportionality.”[6]

While this comment to the rule does not explain whether federal cases from Florida’s federal districts or the Eleventh Circuit should be given any more weight than federal cases from, for example, California or Ohio, one should expect that federal cases from Florida’s federal districts and the Eleventh Circuit, because of their geographic proximity to Florida, will often be cited in state court when there are no Florida cases on point that apply the new proportionality standard.

Albeit tempered by its adoption of the proportionality standard in 2015, the U.S. Supreme Court nonetheless “has stressed on multiple occasions the need to construe the [Federal] Rules liberally to allow for robust discovery.”[7] Thus, when “it appears that further discovery would not be helpful in resolving the issues, a request for further discovery is properly denied.[8] In this regard, when a when a party moves to compel discovery, the moving party “has the initial burden of proving the requested discovery is relevant and proportional.”[9]

As Florida’s federal courts have set forth, the proportionality standard “requires counsel and the court to consider whether relevant information is discoverable in view of the needs of the case” and often applies to ration  or eliminate all forms of discovery that are unnecessary in a specific case or too burdensome as framed for the case.[10] Likewise, Florida’s federal courts use the proportionality standard to limit different types of discovery, including depositions and various types of written discovery requests, when there is no showing of necessity for the requested discovery.[11]

In sum, while the addition of the proportionality standard to Florida’s civil rules initially may create extra work for trial judges now charged with applying a balancing test to every discovery request in which the responding party raises a proportionality objection, it also is more likely to streamline and focus discovery to issues that truly matter in the case. And now that Florida’s trial judges have the proportionality “arrow in their quiver,” it is reasonable to expect that once they become nimble at applying the new standard, they may be deciding discovery disputes more fluidly than before and have an additional tool to manage their dockets more efficiently.

[1] See In re Amendments to Florida Rules of Civil Procedure, 386 So.3d 497, 501 (Fla. 2024).

[2] See In re Amendments to Florida Rules of Civil Procedure, 2024 WL 4983566,  at *1 (Fla. Dec. 5,  2024).

[3] See id.

[4] Fla. R. Civ. 1.280(c)(1) (emphasis added).

[5] 2024 WL 4983566, at *14.

[6] Id. at *1.

[7] See Akridge v Alfa Mut. Ins. Co, 1 F. 4th 1271, 1276 (11th Cir. 2021); Off. Depot, Inc. v. Elementum Ltd., 2020 WL 5506445, at *4 (S.D. Fla. Sept. 14, 2020).

[8] See Avirgan v. Hull, 932 F.3d 1572, 1580-81 (11th Cir. 1991).

[9] See Isaac Indus, Inc. v. Petroquimica de Venezuela, 2022 WL 17532276, at *5 (S.D. Fla. Dec. 8, 2022) (citations omitted). In turn, ‘[t]he responding party must then specifically show how the requested discovery is unreasonable or unduly burdensome.” Id. (citations omitted).

[10] See Off. Depot, Inc., 2020 WL 5506445, at *3.

[11] See, e.g., id. (applying proportionality standard to preclude the depositions of large corporation’s board members where there would be no prejudice that would result to the plaintiff); 2005 Robert Julien Family Delaware Dynasty Trust v. Internal Revenue Service, 2024 WL 678134, at *3 (S.D. Fla. Feb. 20, 2024) (finding a party’s request for a government agency to produce data available through public sources and equally accessible to the requesting party was disproportionate to the needs of the case); Dick’s Sporting Goods, Inc. Forbes/Cohen Florida Properties, 2023 WL 5831467, at *5 (S.D. Fla. Sept. 8, 2023) (request for counsel’s communications after the lawsuit commenced were not proportional to the needs of the case).